Outline of Divorce Procedures
In Belgium, there are two procedures to get a divorce:
-
procedure for Divorce by Mutual Consent
-
procedure for Divorce based on Irretrievable Breakdown
1.
Divorce by Mutual Consent
a.
Conditions
Parties who want to get a divorce, must make full arrangements regarding their
mutual rights, for both property rights and family law issues (see Article 203, Civil
Code).
They must do so based on two agreements to be made: a family law agreement on
the one hand, and a property rights agreement on the other.
Parties should make those two agreements before they can bring the case to the
Court of First Instance.
The agreements made by the Parties must be submitted to the Court of First
Instance, after which the divorce can be granted.
b.
Agreements
The family law agreement must include the following items (see Article 1288,
Judicial Code):
-
residence of the Parties during the trial period
-
custody of the minor children and management of the properties of the minor
children, and the right to personal contact
-
financial contributions of each spouse for the maintenance, the education and
the appropriate education of the children
-
if applicable, the amount of the alimony to be paid by the one spouse to the
other.
For what matters the maintenance allowance between spouses, Article 301 §7 Civil
Code is to be mentioned. After all, this article determines that the court, except in
case the Parties explicitly agreed upon the opposite, by request of one of the
Parties, can increase, reduce or abolish the maintenance allowance between
spouses later on. This is only possible if new circumstances should arise,
independent of the intention of the Parties, following to which the amount of the
maintenance allowance is no longer adjusted to the actual situation of the Parties.
The property rights agreement: a number of compulsory and optional statements
must/can be included (see article 1287, Judicial Code):
-
compulsory statements: all properties and all debts of the Parties must be
included in the property rights agreement, and the regulation of legal succession
and reserve assets of the surviving spouse during the procedure must be
determined
-
optional statements: inventory, modification of life insurance beneficiary,
stipulation for payment of the proceedings costs, etc.
This property rights agreement is compulsory, it must be drawn up as an authentic
act and be transferred in the records of the mortgage registry when immovable
property rights are transferred.
c.
Procedure
The competent court is the Court of First Instance chosen by the spouses. The
proceedings must be instituted by application with the family law and property
rights agreement attached as appendixes, as well as an extract from the birth
certificates of the children and evidence of nationality of the spouses (see Article
1288bis, Judicial Code).
Within one month following the filing of the application, the spouses must personally
appear before the Court of First Instance where they must submit their intention to
get a divorce (see Article 1289, Judicial Code).
In the course of the fourth month following the first appearance the Parties must
reappear before the Chairman of the Court of First Instance to renew their intention
to get a divorce and to apply for the divorce to be granted. With this second
appearance the Parties can be represented by a lawyer (see Article 1294, Judicial
Code).
Spouses who can show evidence of the fact that at the moment of the submission of
the application they have been separated de facto for over six months, are
exempted from a second appearance (see Article 1291bis, Judicial Code).
d.
Decree of Divorce
If it should appear that the Parties have met the conditions and completed the
required formalities, the Court of First Instance shall grant the divorce after which
the Court shall homologate the arrangement regarding the children (see Article
1298, Judicial Code).
When the Decree of Divorce is passed, the Registrar shall send, within one month,
an extract from this decree to the Official at the Civil Status Registry of the
municipality where the wedding took place (see Article 1303, Judicial Code).
Within one month after reception of the extract from this Decree of Divorce, the
Official at the Civil Status Registry shall enter the decision in the Civil Status Register
(see Article 1303, Judicial Code).
2.
Divorce based on Irretrievable Breakdown
a.
Conditions
Parties who want to get a divorce must show evidence of the fact that their marriage
has broken down irretrievably. The marriage is considered to be broken down
irretrievably when the continuation of cohabitation of the spouses has become
impossible as a result of that breakdown (see Article 229, Civil Code).
Evidence of irretrievable breakdown can be shown in various manners (see Article
229, Civil Code):
-
with all legal means
-
by expiry of a certain term of de facto separation
-
by renewal of the intention to get a divorce
Firstly, the irretrievable breakdown can be proven by all legal evidence as, for
instance: proof of adultery (invoke one’s own adultery is also possible), evidence of
assault and battery, etc. (see Article 229 §1, Civil Code).
Secondly, the irretrievable breakdown can be proven by the expiry of a certain term
of de facto separation. Upon joint application of the Parties to get a divorce this term
is six months of de facto separation, in case of unilateral application for divorce this
term shall be one year (see Article 229 §§ 2 and 3, Civil Code).
Thirdly, the irretrievable breakdown can be proven by repeating the intention to get
a divorce twice. The time interval between the first and the second application for
divorce is three months in case of joint application of the Parties, and one year in
case of unilateral application for divorce (see Article 229 §§ 2 and 3, Civil Code).
b.
Procedure
The competent court is the Court of First Instance in the municipality of the
Respondent or of the couple’s last shared address.
The procedure on the merits can be initiated in two different ways: by application
inter partes or by writ of summons.
The Chairman of the Court of First Instance sitting as in interim injunction
proceedings can also take provisional measures regarding the person, the
maintenance and the property of the spouses or their children. These provisional
measures mostly relate to the separate residence of the Parties, to maintenance
allowances between spouses and with regard to the children, and to parental
authority and residence of the children (see Article 1280, Judicial Code).
The procedure on the merits and the interim injunction proceedings can be
performed simultaneously before the Court of First Instance.
In the course of the divorce procedure before the Court of First Instance, the Parties
can also come to full or partial agreements regarding provisional measures related
to the person, the maintenance and the property of the spouses or their children.
These agreements must then be submitted to the Judge for ratification (see Article
1256, Judicial Code).
Personal appearance of the Parties is required in case of joint application. In case
of unilateral application, only the applicant is obliged to personally appear (see
Article 1255, Judicial Code).
The case can be settled at the introductory hearing if the Judge establishes that the
Parties at that particular moment have been separated de facto for respectively
more than six months or one year.
At the introductory hearing the Judge shall continue the case in order to:
-
provide evidence of the irretrievable breakdown of the marriage with all legal
means
-
let expire a certain term of de facto separation
-
allow parties to renew their application for divorce after respectively three
months or one year
Conclusions can be filed by the Parties until close of the debates in order to modify
or extend the application, or to institute a counterclaim or additional claim related to,
for instance, maintenance allowances.
c. Decree of Divorce
If it should appear that the Parties have met the conditions and have completed the
required formalities, the Court of First Instance shall grant the divorce.
When the Decree of Divorce is passed, the Registrar shall send, within one month,
an extract from this decree to the Official at the Civil Status Registry of the
municipality where the wedding took place (see Article 1275, Judicial Code).
Within one month after reception of the extract from this Decree of Divorce, the
Official at the Civil Status Registry shall enter the decision in the Civil Status Register
(see Article 1275, Judicial Code).